• Tool box
  • Within HR, by Del Hunter
    • Profile: Del Hunter

Del Hunter

~ Del Hunter, human resources specialist

Del Hunter

Tag Archives: Parallel circumstances

Parallel facts, different sanctions?

05 Thursday Nov 2015

Posted by D Hunter in appeal, discipline and grievance, Disciplining, dismissal, employment contract, Employment law, employment status, evidence, leadership, Performance management, policy, procedure, termination, tribunal practice

≈ Leave a comment

Tags

different sanction, Hadjioannou v Coral Casinos, MBNA v Jones, Parallel circumstances, Paul –v- East Surrey District Health, tariff approach

The Employment Appeal Tribunal (EAT) has found a dismissal was fair even though another employee involved in the misconduct at a work event received a more lenient sanction. Key differences justified the disparity of treatment.

HR practitioners can read the fact of the incident in MBNA Ltd v Jones EAT/0120/15 but what is interesting is that the EAT has reminded us that under existing case law (derived from Hadjioannou  v  Coral Casinos Ltd  [1981] IRLR 352) warning against adopting a ‘tariff’ approach and stated that it was of the highest importance that flexibility should be retained when an employer had to deal with work place misconduct.

The EAT (in a confirmed judgement Paul –v- East Surrey District Health Authority 1995 IRLR 305) has said there are three possible ways where decisions made by an employer in truly parallel circumstances in relation to a different employee may be relevant:

  1. employees may be led by an employer to believe that certain categories of conduct will be overlooked or will be more mercifully treated in the light of the way that other employees have been dealt with in the past,
  2. the dismissal in the instant case is not for the reason put forward i.e. that the asserted reason is not the real or genuine reason,
  3. ‘evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.’

In the judgement Waterhouse J said ‘It is only in the limited circumstances that we have indicated that the argument [disparity argument] is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument.” So, parallel circumstances will normally lead to the same outcome.

The expectation is highlighted by reference to the 1996 Act (as amended), that is the emphasis is upon the particular circumstances of the individual employee’s case which can be read as  “an employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, …”.

Citations:

Paul –v- East Surrey District Health Authority 1995 IRLR 305

Hadjioannou  v  Coral Casinos Ltd  [1981] IRLR 352

 MBNA Ltd v Jones EAT/0120/15 [2015] UKEAT 0120_15_0109

Acknowledgement

Thanks for access to the free database provided by British and Irish Legal Information Institute

Xpert HR for highlighting the case of MBNA v Jones

 

Advertisements
Advertisements

Subscribe

  • Entries (RSS)
  • Comments (RSS)

Archives

  • November 2017
  • April 2017
  • March 2017
  • August 2016
  • April 2016
  • January 2016
  • December 2015
  • November 2015
  • September 2015
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • April 2009

Categories

  • Administrator
  • awards
  • breach of contract
  • charity
  • CIPD
  • citizen
  • Company law
  • construction
  • Constructve dismissal
  • Consulting Association
  • CV
  • Data protection
  • Del Hunter
  • distance learning
  • education
  • employer
  • employment contract
  • Employment law
    • Absence
    • Adoption rights
    • contract
    • Disability
    • Equality
    • fiduciary
    • injunction
    • maternity leave
    • pension
    • procedure
    • References
    • Remedies
    • TUPE
    • Victimisation
    • Whilstlblowing
  • England and Wales Court of Appeal
  • ethical jobs
  • EU Commission
  • Europe
  • Health & safety
  • health and safety
    • safety new
  • High Court
  • human rights
  • inclussion
  • injunction
  • interview
  • job
  • Job seeking
  • job title
  • leadership
  • legal
  • legal issues
    • ACAS
    • appeal
    • dismissal
    • employment status
    • evidence
    • Fee advice
    • Judicial mediation
    • manslaughter
    • post employment
    • redundancy
    • References
    • technology
    • termination
    • tribunal practice
    • TUPE
  • lesbian and gay
  • lesbian gay and bi sexual
  • neuroscience
  • part time employment
  • pay
    • Adoption
    • Pension
  • Pay and benefits
  • personal development
  • policy
    • absence
    • discipline and grievance
    • Diversity
    • maternity leave
    • remuneration
    • Retention
    • Talent Management
    • whistleblowing
  • profesional development
  • Recruitment and Employment Confederation
  • reference
  • Religion
    • Christian
    • Muslim
  • remuneration
  • social policy
  • startup
  • Strategy
  • stress
  • summary dismissal
  • Technology
  • Terminology
  • Uncategorised
  • voluntary
  • witness
  • women at work
  • work
    • adoption
    • Change management
    • children
    • Children at work
    • development
    • disability
    • Disciplining
    • Discplinaing
    • employment
    • health and safety
    • Hiring staff
    • Job hunt
    • managing staff
    • mediation
    • Performance management
    • Policy
    • recruitment
    • redundancy
    • Religion
    • selection
  • wrongful

Meta

  • Register
  • Log in

Powered by WordPress.com.